Photo: The UpTake

Anti-abortion group Minnesota Citizens Concerned for Life called on Sens. Amy Klobuchar and Al Franken to reverse their Senate Judiciary Committee votes to approve Supreme Court nominee Sonia Sotomayor on Tuesday. In a letter to the senators, MCCL said that a legal board that Sotomayor once sat on advocated abortion rights.

“While Judge Sotomayor served on the governing board of the Puerto Rican Legal Defense and Education Fund (PRLDEF), the PRLDEF was actively involved in litigation that attempted to advance the abortion agenda,” wrote Scott Fischbach, executive director of MCCL. “In fact, briefs that were filed by PRLDEF at the time urged the Court to regard abortion as a ‘fundamental right.’”

Despite the association outlined by Fischbach, Sotomayor has not yet ruled on an abortion or reproductive rights case.

“Women and unborn children in Minnesota have suffered long enough from the devastating results of Roe v. Wade and deserve a United States Supreme Court that will protect them from an aggressive abortion industry,” Fischbach wrote in the letter to Franken and Klobuchar.

MCCL’s letter is unlikely to change any positions. Both Franken and Klobuchar have indicated their support for reproductive rights as well as reducing the need for abortion through family planning.

Kline’s public comments on the Minnesota U.S. Senate race have been rare. But it turns out he has a lot to say:

I have thought it’s important that we know what the legitimate results of the election are. I encouraged [Norm Coleman] to carry this through the courts until we can get as much confidence here in Minnesota and in the nation that the results are accurate.

And frankly, the court’s going to do what the court’s going to do. Supreme courts have a lot of power; they can kind of do what they want to do.

But it seems to me we have 2.9 million votes cast and right now you’re looking at a difference of 300 and small change, there’s not going to be any confidence that we really have a result here.

Especially when there are thousands of disputed ballots, the absentee ballots. I think Norm’s assertion that the absentee ballots were allowed different standards in different counties is absolutely correct. And as long as that sits out there, there’s going to be a great deal of uncertainty about the actual results of the election.

So in a perfect world I guess, I would like to see the Minnesota Supreme Court say there isn’t a winner here. There is not a winner. We cannot declare a winner.

And then I suppose the law would require Gov. Pawlenty to name somebody, to have an election again in 2010.

But this is truly unique. I don’t know that anybody knows of anything like this anywhere in the country, ever, where you had a race this close and no reasonable way to resolve it.

You may recall in Georgia, they had their senate race, Saxby Chambliss had the plurality, a clear plurality, but he didn’t have over 50 percent. And their law requires a runoff, and there we’re done. Had the runoff, results are done, certified, a senator’s seated and they’re off and running.

And we’re still caught here. So I hope that we’ll change our election laws here in Minnesota.

Via Minnesota Public Radio’s Polinaut blog.

A diller, a dollar, a ten o’clock scholar!
What makes you come so soon?
You used to come at ten o’clock,
But now you come at noon.

The hour has passed when the Minnesota Supreme Court makes its weekly release of opinions — without a ruling in the Norm Coleman-Al Franken election contest.

Rumors are rampant that an order is imminent in Coleman’s appeal of the lower-court decision giving Franken a 312-point margin of victory in the 2008 election for U.S. Senate. (UPDATE: And it will favor Franken, according to one Twitterer.)

The high court normally releases opinions online at 10 a.m. Thursday, although a court spokesman has advised the Minnesota Independent that he expected justices to publicize their ruling as soon as it is ready.

The longer the wait, the better chance Coleman sees for an opinion favorable to his cause, according to a Twitter message over the weekend from the St. Paul Pioneer Press’ Political Animal:

Coleman told reporters Sat. the lack of decision from Supremes is a good sign,a quick ruling would have=affirmed 3judges

UPDATE: The end of the business day has come and gone in St. Paul without a Coleman-Franken opinion from the Minnesota Supreme Court.

(WDCpix.com)

Norm Coleman isn’t the only obstacle to Democrats wielding 60 votes in the U.S. Senate. Edward Kennedy’s battle with brain cancer and Robert Byrd’s staph infection have effectively whittled an otherwise filibuster-proof majority down to 57 — for now.

Byrd, the 91-year-old senator from West Virginia, will be missing from the Senate for at least another week after going to the hospital three weeks ago, Politico reports, and Kennedy’s return isn’t set.

The Massachusetts Democrat is 77 and has served since 1962, a span three years shorter than Byrd’s all-time record for length of service by a U.S. senator.

Their absences, along with that of Coleman challenger Al Franken, have hamstrung Democrats on legislation from the Employee Free Choice Act to healthcare reform, as well as confirmation of a key Justice Department nominee.

Coleman has kept his own hopes of returning to the Senate alive by appealing two decisions against him, first from the State Canvassing Board in January and then by a special election-contest judicial panel in April. The Minnesota Supreme Court could issue a ruling on that second appeal as early as today.

“You know, Neil, if the Minnesota Supreme Court says, ‘You sign the certificate’ — and there’s not an appeal or some other contrary direction from a federal court — you know, that’s my duty.”

Watch it:

Franken’s brief will ask the high court to tell Gov. Tim Pawlenty he must issue an election certificate once the case clears the state’s judicial system, Polinaut predicts. Coleman filed his brief last week and must respond to Franken’s reply by Friday. Oral arguments are set for June 1.

Meanwhile, in Washington last week, the U.S. Senate’s Republican leaders hosted a dinner to raise funds for Coleman’ legal gambit. The event, at Bobby Van’s Grill, benefited the National Republican Senatorial Committee (NRSC) recount fund.

(Bobby Van’s is the kind of place, apparently, where you might see Commerce Secretary Gary Locke at a table with Forest Whitaker, the movie star who also attended the White House Correspondents Dinner on Saturday night.)

Raising money for the Senate rivals got easier after the Federal Election Commission decided that the national parties could set up recount funds independent of their existing accounts and the candidates’ own accounts. That allows eager donors to spread more of their wealth among several accounts.

Watch the dollar limits lift in the fine print from a series of invites.

Nov. 18, 2008:

Feb. 11, 2009:

May 6, 2009:

Finally, here’s a new YouTube video with a Kermit-like frog puppet singing a Norm Coleman version of Billy Joel’s “My Life.” (Joel performed the song in its original version with Elton John at the Xcel Center in St. Paul last week — fan video here).

Excerpts from the interviews linked above:

WINFREY: Is it a day by day thing? 
EDWARDS: Neither one of us is out the door so I guess it’s day by day, but
maybe it’s month by month. 
WINFREY: So you are still living together? 
EDWARDS: Still living together. 
WINFREY: Are you still in love with him? 
EDWARDS: You know, that’s a complicated question. 

REPORTER: But you are saying it may go beyond the state court process.
PAWLENTY: It’s one of many scenarios. So if the question is will you sign the certificate exactly the day the Minnesota Supreme Court decides, well if the court process at the state level is continuing than I am prohibited to sign it. So it is more involved than just that one day that one moment. There are other factors here.

Both answers are made more complicated or involved by presidential politics. The high-office aspirations of John Edwards are now relegated to history by his admitted marital infidelity. Pawlenty’s, however, may get a boost or a dent depending on how he handles his responsibility of issuing an election certificate to either Al Franken or Norm Coleman.

Foley’s approach is to figuratively don a robe, as a state Supreme Court justice might, and dig into one of the nine election-problem scenarios that Coleman’s brief raises about his contest with Al Franken to represent Minnesota in the U.S. Senate.

He discovers more complexity and uncertainty in applying state law than he expected to find, at one point deciding it all hinges on the meaning of the word “satisfied.”

These state law issues, regrettably, are not straightforward. Indeed, as I’ve mulled them over since Coleman filed his brief last Thursday, at times I’ve found them mind-numbingly complex, and I’m someone who specializes in election law and has followed this vote-counting dispute from the beginning (meaning since Election Day, last November 4).

It’s Foley’s field — he’s a professor and election-law director at Ohio State’s Moritz College of Law — so you’d think he would enjoy a chance to romp in it.

But Foley doesn’t sound so happy, perhaps because, as he told the Minnesota Independent in late February, he has been rooting for a Coleman-Franken resolution that would rank among the best-settled disputed elections in American history.

He expressed hope then that a well-written, unanimous ruling from the election-contest trial court, even if appealed to the state’s high court, might leave winners and losers alike satisfied that fairness had prevailed and justice had been served.

The trial court did issue a unanimous ruling. But now Foley sounds less confident that the appeal can be handled with dispatch. Here is the conclusion to Foley’s 5,000-word (and 35-question-mark) essay:

What should one make of all this uncertainty over the state-law issues in this appeal? I’ve only considered the first of the nine scenarios identified by Coleman, and it seems more than complicated enough. Perhaps the issues will seem clearer after Franken’s brief and Coleman’s reply. But I’m not betting that complete clarity will reign in time for oral argument. And, of course, there are still the federal constitutional questions, even after all the state law issues are resolved (as well as other, non-Bell, issues of procedural bar, which might preclude reaching some of these issues on the merits).

One begins to wonder if practical considerations should overtake rigorous legal analysis in the minds of the Minnesota Supreme Court justices. According to opinion polls, the public is clamoring for this disputed election to be resolved. A remand to the trial court might spark a public outcry.

I, for one, didn’t think there needed to be an appeal in the first place. As I’ve written elsewhere, the demands of democratic legitimacy can be satisfied by a fair trial before a well-structured panel, as this three-judge court was. In the context of a major statewide election, where the need for closure is especially pressing, democratic legitimacy does not demand “de novo” review of the relevant legal questions by a second multi-member judicial panel, however fair it also might be in its consideration of the very same questions.

Still, Minnesota law undeniably permitted this appeal. Because it did, the Minnesota Supreme Court should adjudicate the appeal according to law, not politics. Therefore, as difficult and complicated as both the state and federal law issues in the appeal may be, the court’s justices must grapple with those issues as best they can using the impartial methods of judicial inquiry. The justices must follow the law wherever it leads them, even if that place is an uncomfortable one politically.

Photo: Wikipedia

Norm Coleman should be crying crocodile tears over David Souter’s imminent departure from the U.S. Supreme Court. The former senator may yet bring an election case to the nation’s high court that relies on the 2000 Bush v. Gore recount ruling. Souter abhorred the Bush v. Gore decision more viscerally than any successor ever could.

Here’s how much Souter despised the Bush v. Gore decision, as recounted in New Yorker reporter Jeffrey Toobin’s 2007 book, “The Nine“:

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal.

Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

Souter was more restrained in his written dissent in Bush v. Gore. More remarkable was that the majority opinion that gave George W. Bush the presidency also famously proscribed using the decision as precedent:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Yet in the brief he submitted to the Minnesota Supreme Court on April 30, Coleman cited Bush v. Gore five times.

On pages 1–2:

Whether the trial court violated the constitutional protecxtions of equal protection and due process when it imposed a strict compliance standard for rejected absentee ballots rather than a substantial compliance standard like that actually applied by election officials (and in accord with this Court’s longstanding policy favoring enfranchisement)? … Apposite Authorities: … Bush v. Gore, 531 U.S. 98 (2000) …

On page 23:

The applicability of the guarantees of equal protection and due process in the Fourteenth Amendment to the Constitution also made such evidence [of absentee ballots counted on Election Day not meeting the election contest court's standards] relevant. Those guarantees mandate that all similarly situated absentee ballots be reviewed under a uniform standard uniformly applied. See, e.g., Bush v. Gore, 531 U.S. 98 (2000) …

On page 41:

But the Constitution protects “more than the initial allocation of the franchise.” Bush v. Gore, 531 U.S. at 104. It also protects the right of all qualified voters to have their votes counted equally. Id. …

If the state fails to apply “specific standards during a statewide recount that will ensure “equal application” to all votes, the lack of uniform standards is a constittional violation. Bush, 531 U.S. at 106.

On pages 42–43:

The trial court’s attempt to distinguish Bush v. Gore, which makes clear that different areas of the state applying different interpretations of an applicable standard is unacceptable under the Constitution, is not persuasive. There is no logical distinction between the unequal treatment of equivalent chads caused by the Florida Supreme Court’s imprecision (different counties interpreting the court’s holding differently) and the unequal local treatment of absentee ballots caused by imprecision in officials’ understanding and intentional application of the statutory standard set forth in Minn. Stat. 203B.12, subd.2. Just because Minnesota’s standard was set by statute rather than court decision does not excuse the constitutional requirement that the standard be applied uniformly. In both cases a standard has been inconsistently applied as the result of official imprecision. Indeed, because it leaves standing — and therefore, ratifies — local decisions made in accordance with their own interpretative gloss on the statute, without insisting on strict compliance for all absentee ballots, the trial court’s decision itself confirms the same constitutional violation at issue in Bush v. Gore. Deliberate unequal treatment of similarly situated voters simply is unacceptable under federal equal protection law.

Once the first President Bush put him on the bench in 1990, Souter moved in a liberal direction, running opposite to Coleman’s Dem-to-Republican transformation. But it’s not Souter’s place among the court’s liberal minority that should make Coleman smile to see him go. (Obama can find a reliably liberal justice to replace him.) It’s Souter’s reviling of Bush v. Gore that Coleman should be glad to see vanish.

This is the first opportunity to name a new member to the nation’s high court for Obama, a Harvard University-trained lawyer himself who has taught constitutional law.

Given the schedules of the U.S. Supreme Court and the Minnesota Supreme Court — which is hearing oral arguments in the Norm Coleman-Al Franken Senate-election dispute on June 1 — Minnesota may finally have two U.S. Senators again by the time Obama’s nominee to replace Souter comes before the full Senate.

The state’s one sitting Senator, Amy Klobuchar, serves on the Judiciary Committee, which reviews nominees to the high court.

Obama is likely to pick a woman, many court-watchers believe. According to Daphne Eviatar at the Washington Independent (the Minnesota Independent’s sister site), a short list of potential nominees includes:

Elana Kagan, Obama’s Solicitor General

Sonia Sotomayor, a federal appeals court judge in New York who (like Souter) was nominated by the first President Bush

Diane Wood, a federal appeals court judge in Chicago nominated by President Clinton